Overturning EPA’s Endangerment Finding Is a Constitutional Imperative

The U.S. Environmental Protection Agency (EPA) is carrying out one of the biggest power grabs in American history. The agency has positioned itself to regulate fuel economy, set climate and energy policy for the nation, and amend the Clean Air Act—powers never delegated to it by Congress. It has done this by:

• Pulling its punches in the Massachusetts v. EPA Supreme Court case; • Granting California a waiver to regulate greenhouse gas (GHG) emissions from motor vehicles; and • Declaring greenhouse gas emissions a danger to public health and welfare, thus triggering a regulatory cascade through multiple provisions of the Clean Air Act, in a decision known as the “endangerment finding.”

To restore the constitutional separation of powers and democratic accountability, Congress must overturn EPA’s endangerment finding. S. J. Res. 26, a resolution of disapproval, introduced by Sen. Lisa Murkowski (R-Alaska), under the Congressional Review Act (CRA), provides an appropriate vehicle to accomplish that. (Enacted in 1996, the CRA provides an expedited procedure for Congress to veto a final agency action before it takes effect.)

The resolution, which would nullify the endangerment finding’s legal force and effect, is a referendum not on climate science, but on who shall make climate and energy policy—the people’s elected representatives or politically unaccountable bureaucrats, trial lawyers, and activist judges. Overturning the endangerment finding is a constitutional imperative.

As Senators prepare to debate the resolution, they should ponder four questions:

1. When did Congress authorize the Environmental Protection Agency to license California and other states to adopt their own fuel economy standards within their borders?

2. When did Congress authorize EPA to act as a co-equal—or even senior—partner with the National Highway Traffic Safety Administration (NHTSA) in setting fuel economy standards for the auto industry?

3. When did Congress authorize EPA to control greenhouse gas emissions from stationary sources and to establish climate and energy policy for the nation?

4. Finally, when did Congress authorize EPA to “tailor”—that is, amend—the Clean Air Act (CAA) to avoid an administrative debacle of the agency’s own making?

The answers are never, never, never, and never. EPA is flouting federal law and the Constitution, which vests all lawmaking power in Congress.